Citation: Kapanadze v. Definity Insurance Company, 2025 ONLAT 24-003008/AABS-PI
Licence Appeal Tribunal File Number: 24-003008/AABS
In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.
Between:
Malkhazi Kapanadze
Applicant
and
Definity Insurance Company
Respondent
AMENDED PRELIMINARY ISSUE HEARING DECISION
ADJUDICATOR: Kate Grieves
APPEARANCES:
For the Applicant: Kameliya Stancheva, Paralegal
For the Respondent: Jonathan B. White, Counsel
Heard: By Way of Written Submissions
OVERVIEW
1Malkhazi Kapanadze (the “applicant”), was involved in an automobile accident on January 14, 2023 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by Definity Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE IN DISPUTE
2The preliminary issue to be decided is:
i. Is the applicant barred from proceeding with his claim for benefits as he failed to notify the respondent of the circumstances giving rise to the claim for benefits no later than the seventh day after the circumstances arose or as soon as practicable after that day?
RESULT
3The applicant is statute-barred from proceeding with his application.
ANALYSIS
4The applicant was involved in an accident on January 14, 2023. The respondent was first notified of the applicant’s intention to seek accident benefits on July 17, 2023 when a disability certificate was submitted to the respondent. On July 18, 2023 the respondent emailed the applicant an accident benefits package.
5On July 25, 2024 2023 the respondent acknowledged receipt of the OCF-1 and OCF-3 and requested a reasonable explanation for the delay in reporting his intention to claim accident benefits.
The Law
6Section 32(1) of the Schedule requires an insured person to inform an insurer of their intention to claim accident benefits within seven days of the accident, or as soon as practicable after.
7Section 34 states that if the insured person does not comply with that time limit, the insured person may still be entitled to benefits if they have a reasonable explanation for the delay.
8Pursuant to section 55(1)1, an insured person may not apply to the Tribunal if they have not notified the insurer of the circumstances giving rise to a benefit or has not submitted an application for the benefit within the times set out in the Schedule.
9The interpretation of “reasonable explanation” is guided by Horvath and Allstate Insurance Company of Canada, FSCO A02-000482, June 9, 2003, and was more recently reiterated in K.H. v. Northbridge, 2019 CanLII 101613 (ON LAT). The guiding principles are summarized as follows:
- An explanation must be determined to be credible or worthy of belief before its reasonableness can be assessed.
- The onus is on the insured person to establish a “reasonable explanation”.
- Ignorance of the law alone is not a “reasonable explanation”.
- The test for “reasonable explanation” is both a subjective and objective test that should take account of both personal characteristics and a “reasonable person” standard.
- The lack of prejudice to the insurer does not make an explanation automatically reasonable.
- An assessment of reasonableness includes a balancing of prejudice to the insurer, hardship to the claimant and whether it is equitable to relieve against the consequences of the failure to comply with the time limit.
10The onus is on the applicant to establish that he has a reasonable explanation for the delay.
The applicant failed to comply with the timelines set out in section 32(1)
11I find that the applicant did not comply with the timelines set out in section 32(1). The applicant does not dispute that he provided late notice of his intention to claim accident benefits. In his submissions, he agrees that the accident (the circumstances giving rise to a claim for benefits) occurred on January 14, 2023. He offers no evidence that he provided notice of the claim prior to the insurer’s receipt of the OCF-3.
The applicant has not provided a reasonable explanation for the delay
12The applicant’s submissions offer no explanation for the delay in notifying the insurer. The applicant references two pieces of evidence: an entry in the family doctor’s clinical notes dated July 18, 2023 that mentions the accident, and a disability certificate dated July 17, 2023. Neither addresses the reason why the applicant failed to notify the insurer of his intention to claim benefits for approximately 6 months. The applicant made no submissions as to the significance of these documents.
13In the absence of an explanation from the applicant, I am unable to determine if he has a reasonable explanation for the delay. I find that the applicant has not met his burden to establish a reasonable explanation for the delay, pursuant to s. 34.
The applicant is barred from proceeding with his application
14Pursuant to s. 55(1)1 of the Schedule, an insured person shall not apply to the Tribunal under subsection 280(2) of the Insurance Act if the insured person has not notified the insurer of the circumstances giving rise to a benefit within the times prescribed in s. 32.
15As outlined above, the applicant did not notify the respondent of the accident in accordance with section 32(1) and has not provided a reasonable explanation for the delay. Accordingly, pursuant to section 55(1)1 of the Schedule I find that the applicant is statute barred from proceeding with his application.
ORDER
16The applicant has not provided a reasonable explanation for failing to apply for accident benefits within the time limits prescribed by the Schedule. His application is barred by s. 55(1)1 of the Schedule from proceeding and is accordingly dismissed. The Tribunal shall vacate any date that has been scheduled for the substantive issue hearing.
Released: January 10, 2025
___________________________
Kate Grieves Adjudicator